STATE OF NEW JERSEY v. EFRAIN BOLANOS MOLINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EFRAIN BOLANOS MOLINA,

Defendant-Appellant.

October 12, 2016

Submitted September 14, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-03-0425.

Nelson Gonzalez, attorney for appellant.

Christopher S. Porrino, Attorney General, attorney for respondent (Claudia Joy Demitro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Efrain Bolanos Molina, a native of Mexico, appeals from a February 11, 2013 Law Division order denying his petition for post-conviction relief (PCR). On appeal, defendant argues

POINT I

SINCE [DEFENDANT'S] PLEA OF MARCH 18, 2004[,] FAILED TO BE GIVEN KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY, IT MUST BE VACATED AND THE PARTIES RETURNED TO THE POSITION THEY WERE IN PRIOR TO THE PLEA.

POINT II

SINCE [DEFENDANT] DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF HIS COUNSEL DURING HIS 2004 CRIMINAL PROCEEDINGS AND HIS FORMER ATTORNEY'S INADEQUATE ASSISTANCE INFLUENCED [HIM] TO ACCEPT A GUILTY PLEA TO AGGRAVATED ASSAULT, [DEFENDANT'S] CONVICTION MUST BE VACATED.

POINT III

SINCE [DEFENDANT] RECEIVED AFFIRMATIVE MISADVICE FROM HIS ATTORNEY REGARDING IMMIGRATION CONSEQUENCES, HIS CONVICTION MUST BE VACATED.

Following review of the record and applicable law, we reject defendant's arguments and affirm. Defendant's PCR petition is time-barred, as it was filed more than five years following his conviction and it fails to allege facts to support a finding of excusable neglect. R. 3:22-12(a)(1). In addition to this procedural bar to relief, a review of the merits of these arguments shows defendant fails to establish a prima facie claim of ineffective assistance of counsel, and no evidentiary hearing was necessary.

We glean the following facts and procedural history from the record on appeal. On March 12, 2003, a Hudson County grand jury returned Indictment No. 03-03-0425 charging defendant with attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); second-degree aggravated assault serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eleven); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count twelve).

Pursuant to a negotiated agreement, on March 18, 2004, defendant pled guilty to count three, amended to third-degree aggravated assault significant bodily injury, N.J.S.A. 2C:12-1(b)(7). In return, the State agreed to recommend a probationary sentence conditioned upon defendant serving up to 364 days in the county jail, and to dismiss the remaining counts of the indictment. During the plea colloquy, defendant affirmed that he reviewed the plea form with his attorney, with the assistance of a Spanish interpreter; that he understood his attorney; and that he was satisfied with his attorney's advice and assistance. Defendant also responded affirmatively to question seventeen on the plea form, acknowledging the possibility of being "deported by virtue of [his] plea of guilty." When asked to provide a factual basis for his guilty plea, defendant admitted kicking the victim after the victim had been stabbed during a fight in which a group of individuals were present.

On June 24, 2004, the sentencing judge imposed a five-year probationary sentence, conditioned upon defendant serving 364 days in the county jail. Applicable fines and penalties were also imposed. Defendant did not directly appeal his conviction or sentence.

Nearly seven years later, on April 18, 2011, defendant received notice from the United States Department of Homeland Security to appear for removal proceedings. The notice was silent as to defendant's conviction. Rather, it specified as the basis for his removal the fact that he was a citizen of Mexico and that he had entered the United States illegally.

On December 29, 2011, defendant, represented by counsel, filed a motion for PCR seeking to vacate or withdraw his 2004 guilty plea. In the certification accompanying his motion, defendant maintained plea counsel

never informed me that my guilty plea would or could result in deportation. In fact he never informed me about any effects that my plea to [third-degree] [a]ggravated [a]ssault . . . would have on my immigration status and/or my ability to get status in the United States. I was completely unaware of the consequences that awaited me as a result of my guilty plea.

In an undated supplemental certification, submitted more than a year after his initial certification and one day prior to oral argument, defendant claimed that an interpreter was not present when he discussed the plea form with his plea counsel, and that plea counsel had merely "glossed over the plea form with me including question [seventeen]." Defendant further stated: "I understood [plea counsel] to express to me that everything would be alright, no jail, no deportation[,] nothing."

Judge John A. Young, Jr., denied defendant's petition, concluding in a thorough twenty-six page written opinion that it was filed outside the applicable period for filing for PCR and also failed to allege grounds sufficient to demonstrate the delay in filing was the result of excusable neglect. Further, the judge concluded defendant had not established a prima facie claim of ineffective assistance of counsel. This appeal ensued.

A deprivation of the constitutional right to effective assistance of counsel occurs when "counsel [is] not functioning as the counsel guaranteed by the Sixth Amendment," State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), and counsel's inadequate deficient performance causes the defendant prejudice, Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

In reviewing a defendant's claim to be relieved of the consequences of a guilty plea, the first prong of the Strickland ineffective assistance of counsel test may be met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). Counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012). The second prong requires the defendant establish a reasonable probability that he or she would not have pled guilty but for counsel's errors. Gaitan, supra, 209 N.J. at 351.

We first address defendant's assertions focused on counsel's advice regarding the immigration consequences of entering a guilty plea. We conclude defendant has not presented a basis for relief.

In State v. Nu ez-Vald z, 200 N.J. 129 (2009), the Supreme Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting Nu ez-Vald z, supra, 200 N.J. at 143). The United States Supreme Court has clarified that counsel's duty is not limited to avoiding "false or misleading information," as our Court identified in Nu ez-Vald z, supra, 200 N.J. at 138, but also includes an affirmative duty to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96. The United States Supreme Court made clear that counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 330-31 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).

In Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the Court concluded the rule announced in Padilla imposed a new obligation and announced a new rule of law. Id. at ___, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162. Accordingly, its holding would be applied prospectively and "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Ibid.

Here, defendant's plea, entered in 2004, predates Padilla. Consequently, Judge Young properly concluded Padilla's holding was inapplicable; he evaluated defendant's claims under the law applicable to claims of ineffective assistance of counsel regarding the deportation consequences of conviction following a guilty plea on the date of defendant's plea. At the time defendant pled guilty, New Jersey case law instructed that "a defendant's guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361. Guilty pleas entered prior to Padilla must be reviewed to determine whether counsel provided affirmative false information regarding the plea's immigration consequences. State v. Santos, 210 N.J. 129, 144 (2012). "Only if defendant's attorney affirmatively gave incorrect advice about the deportation consequences of his guilty plea might he be entitled to set aside his conviction in accordance with the holding of Nu ez-Vald z." Brewster, supra, 429 N.J. Super. at 394-95.

This record does not support a claim of affirmative misadvice. Judge Young correctly concluded

[Defendant's] request for PCR relief is time barred and he has failed to demonstrate excusable neglect, but also fails on its merits to establish a prima facie case that plea counsel was constitutionally defective. Non-advice would not entitle [defendant] to relief and insufficient evidence has been provided to conclude that counsel affirmatively misadvised [defendant] as to the immigration consequences of his plea.

Moreover, Judge Young properly reasoned that defendant's claim of prejudice as required by Strickland's second prong was not met

Even if affirmative misadvice had been provided, I also find that [defendant] was not prejudiced because deportation proceedings were not a consequence, direct or collateral, of the conviction stemming from his plea. Deportation proceedings were initiated as a result of [d]efendant's illegal presence in the country, not his conviction.

We also share Judge Young's conclusion that defendant's application for PCR relief is time-barred, and defendant failed to show "excusable neglect" for the late filing. Pursuant to Rule3:22-12(a)(1), a defendant must file a PCR petition within five years of the challenged conviction, unless the petition alleges facts showing the delay was due to "excusable neglect" and there is a "reasonable probability" a "fundamental injustice" would result if the petition were barred. Additionally, Rule1:1-2(a) permits courts in "exceptional circumstances" to relax the five-year time bar, but only if a defendant demonstrates an injustice by a preponderance of the credible evidence. State v. Mitchell, 126 N.J.565, 579 (1992).

In determining whether the alleged facts constitute excusable neglect, we "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) (citation and internal quotation marks omitted). However, more than "a plausible explanation for [the defendant's] failure to file a timely PCR petition" is required. Ibid.

In this matter, defendant was sentenced on June 24, 2004, and filed this PCR petition more than seven years later on December 29, 2011. As Judge Young determined, defendant failed to establish excusable neglect or the existence of an injustice that would permit the relaxation of the five-year time bar. Excusable neglect is not established "simply because [defendant argues] he received inaccurate deportation advice from his defense counsel." Brewster, supra, 429 N.J. Super. at 400 (citing State v. Goodwin, 173 N.J. 583, 595 (2002)).

Finally, in addition to being time-barred, we conclude that Rule3:22-4 bars defendant's substantive challenge to the factual basis supporting his guilty plea, as it could and should have been raised on direct appeal. Defendant's failure to do so precludes relief. Ibid.

Affirmed.